International child abduction

Abstract

"International family law" is today shown to be a viable concept demonstrated by the positive law developed under two Conventions which I will examined thoroughly throughout this thesis. In the course of this in-depth study on child abduction, I will examine how International Institutions and States have reacted to this ever-growing problem in the light of two International Conventions, namely the Hague Convention on the Civil Aspects of International Child Abduction 1980 (henceforth Hague Convention), and the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980 (henceforth European or Council of Europe Convention). Both the Hague and European Conventions protect custody rights and access rights. The fundamental principle underlying the Conventions is that unlawful removal of a child by one parent from one State to another is contrary to the best interests of the child, since any abduction entails a sudden removal and total change of environment. Mainly through casestudy, this thesis aims to show how State parties to the Conventions work to reduce the ever-increasing number of child abductions. Although there are a few cases of national favouritism, most State parties enhance the spirit of the Conventions, which, it must be said, are not in competition with one another but are rather complimentary to one another. When a child has been abducted from one country to another, international mechanisms should be available to secure its return either voluntarily or through court proceedings. This has been achieved through the setting up of Central Authorities, and as will be shown, much of the strength and weakness of the Hague and European Convention depends upon such Central Authorities, which consequently need to be sufficiently staffed and resourced. The Hague Convention is concerned with the protection of custody rights, in cases of wrongful removal or retention, whether or not there has been a foreign order. On the other hand, the main scope of the European Convention is that any decision relating to custody given in a contracting State shall be recognised and, where it is enforceable in the State of origin, made enforceable in every other contracting State. However, both the Hague and European Conventions aim to re-establish the equilibrium and make it possible to have a meaningful dialogue between the parents about the child's future and best interests. Lastly, I will examine the Maltese position in light of the fact that Malta has ratified neither of the two Conventions. As will become evident throughout the thesis, Malta has much to benefit from these two International Conventions and I sincerely hope that Malta will ratify both Conventions as soon as possible. If not, Malta will continue to be a safe haven for ill-intentioned parents.